Are new No Child waivers illegal?

An unprecedented set of recent Education Department decisions about No Child Left Behind waivers is at the least an overreach and at the very worst illegal, a chorus of critics say.

Last week, the department declared NCLB waivers for Kansas, Oregon and Washington state “high-risk” because each state has more work to do in tying student growth to teacher evaluations – a major requirement for states that want out of the more arduous provisions of the law. And in early August, the department granted waivers to eight districts in California, the first time the department bypassed states on No Child Left Behind flexibility.

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Observers and analysts say the department’s high-risk waiver decision simply isn’t allowed under federal law. And they say Education Secretary Arne Duncan broke with what he told Congress in February about a preference not to grant district waivers, which these critics think are just plain bad policy. NCLB is long overdue for reauthorization. With that renewal nowhere in sight, Duncan has granted more than 40 waivers of the law to states, D.C. and the group of California districts, freeing states from requirements such as having all students reading and doing math at grade level by the 2013-14 school year.

“Why deal with pesky Congress when you get to make all the rules?” said Michael Petrilli, executive vice president of the conservative Thomas B. Fordham Institute. The department doesn’t have the authority to declare waivers high-risk, he said, and one of the states should call Duncan’s bluff.

“One of these states should sue,” Petrilli said. “It’s absolutely nuts.”

Kansas, Oregon and Washington state received one-year, conditional waivers in 2012 that could be extended for another year if they complete the necessary work on their evaluation systems, but the department feels they haven’t hit the mark. If the states don’t get their teacher evaluation systems in order, they could lose their waivers.

“Many conservatives would say he’s rewriting the law,” Petrilli added. “Some of this really is uncharted territory, and while the administration has the authority to issue waivers, they do not have the authority to issue mandates on the waivers.”

Frederick Hess, director of education policy studies at the conservative American Enterprise Institute, said the high-risk waivers set a troubling precedent that stretches the federal role in “novel and problematic ways.”

“It seems to me to be inconsistent with the law, especially given there’s no language enabling the secretary to impose new conditions in exchange for a waiver,” he said. “So, while there’s always a little murkiness on this stuff, if push comes to shove, I regard them as illegal.”

But an Education Department official said the department’s actions are allowed by law.

“On both instances, with the [California districts’] waiver and designating Kansas, Oregon and Washington as high-risk states, the department is within its bounds set by the law and precedent with the previous administration,” the official said.

A provision in the Code of Federal Regulations outlines the department’s ability to place a state’s waiver on high-risk status for a number of reasons, including if the waiver grantee has a “history of unsatisfactory performance” or “has a management system that does not meet certain management standards.” And if the department labels a waiver high-risk, it can hold the waiver grantee to special conditions, such as withholding authority to “proceed to the next phase” until the department receives “evidence of acceptable performance within a given period of time.”